Category: Disputes Yearbook 2024

2018 saw Ofcom decide that BT held significant market power in relation to stand-alone landline customers, finding that the company had been overcharging customers by at least £7 a month. Due to the significant market power exerted by BT, Ofcom and BT agreed to reduce its prices going forward. However, compensation was not provided for consumers for the previous years of overcharging, nor for clients who had purchased both internet access and phone access.

The initial claim, filed in 2020, saw class representative Justin LePatourel seeking compensation on behalf of these consumers. In the first-ever opt-out collective action to reach trial, it is set to be closely watched by claimant and defendant firms alike, and is anticipated to have significant effects on the class action landscape in England and Wales. Continue reading “Justin LePatourel v BT”

Gutmann v Govia Thameslink Railway, Govia Ltd, The Go-Ahead Group, Keolis Ltd, MTR South Western, Stagecoach South Western, London & South Eastern Railway, and Secretary of State for Transport

The train tickets cases continue to move through the courts, with trial one set to take place in June and July. Issues linked to the alleged dominance abuse will be heard in this trial, with quantification of damages left to be heard in trial two, following in June 2025. The claim is expected to total over £166m in damages across all claims. Continue reading “Train tickets cases”

Building contractor Shepherd Construction is bringing a claim valued at almost £70m against 12 defendants, including building materials company Kingspan in the first dispute to consider the new cause of action against cladding manufacturers introduced in the Building Safety Act 2022.

The dispute concerns four cladding systems used on a mixed-use development in Colindale, London. Shepherd alleges numerous defects including that cladding and insulation products provided were non-compliant with building regulations. Continue reading “Shepherd Construction v Kingspan & Ors”

Serco hits the High Court at the start of June in the first s90A securities group action to go to trial. Claimants allege that they were shareholders of Serco and acquired, held, or disposed of shares in Serco between 2006 and 2013, asserting that they suffered loss due to untrue or misleading statements published by Serco. With this being the first case under s90A of the Financial Services and Markets Act 2000 (FSMA) to reach judgment, there are a range of fundamental issues to be addressed, touching on the interpretation of key provisions of the statute. The case also involves novel issues of reliance, loss and quantum, and the identification of persons discharging managerial responsibility.

The case continues the development of securities litigation, which started in 2013 in the high-profile case brought against The Royal Bank of Scotland. It will also provide clarity on the effects of the Autonomy litigation, which considered the issue of reliance. Continue reading “Serco”

Described by one London disputes head as ‘the biggest class action ever’, Municipio de Mariana & Ors v BHP Group sees a claimant class of more than 700,000 bringing claims for damages in excess of £36bn arising from the 2015 collapse of Brazil’s Fundão Dam.

On 5 November 2015 the dam suffered a catastrophic failure. Nineteen people were killed and over 40 million cubic metres of iron ore waste poured into the Doce River in what became the worst environmental disaster in Brazil’s history. Continue reading “Municipio de Mariana & Ors v BHP Group”

Complex claims are being brought against Mastercard and Visa in an ongoing decade-long saga involving over 1,800 corporate claimants across the hospitality, arts, financial services, and leisure sectors. With three different strands of cases – Merricks v Mastercard, collective cards, and umbrella proceedings – lawyers involved are finding themselves in court almost weekly. The first of these, the Merricks claim, is the second collective proceedings to have ever been brought in the CAT, starting seven years ago. Judgment on a causation hearing came through in February, examining the veracity of the central facts, which ultimately determined that on the factual basis, the European interchange fees did not drive the UK fees. Cited as a success by Freshfields, a spokesperson for the firm commented, ‘this is a very significant judgment. It finds that over 90% of Mr Merricks’ case fails factually’. If the judgment is left to stand, the value of the claim will be reduced by £9bn from a total of £10bn. Merricks’ lawyers have indicated their intention to push for a trial on a counterfactual scenario, which if successful, would bring this amount back into play. Continue reading “Mastercard proceedings”

In line with the trend towards mega-trials, the Commercial Court in October is due to hear the highly publicised Russian aircraft insurance claims, with aircraft lessors bringing multiple proceedings across a range of jurisdictions.

The losses arise from the detention of hundreds of commercial aircraft in Russia due to its invasion of Ukraine and the subsequent implementation of international sanctions against it. The litigation encompasses complex multi-party insurance claims, involving expert evidence across Russian politics, civil aviation, insurance underwriting, and US sanctions. Continue reading “Russian aircraft claims”

Following the refusal of the CAT to allow Dr Gormsen to commence collective proceedings in February 2023, a hearing at the start of January considered the reformulated claim. The revised claim alleged that Meta had abused its dominant position through its collection of ‘off-Facebook data’, and had combined this with data gathered on the platform to enable extremely targeted advertising. Through this collection, and arguing it formed a ‘take-it-or-leave-it’ condition, it was argued Meta had imposed an unfair trading condition on its users, who subsequently had suffered losses of over £2bn.

The reformulated claim was ultimately successful, with the CAT satisfied that there was a clear blueprint to trial laid out and that the ‘Pro-Sys’ test was met. The decision in the certification hearing was eagerly anticipated, in providing insight to the CAT’s ongoing approach to certifying class representatives, and whether they would continue with a low-bar approach. The CAT granted a collective proceedings order (CPO) based on the new application, holding there was an arguable and triable case against Meta. It was clarified that the CAT will be looking closely at funding arrangements at the appropriate stage, and, that collective proceedings were largely encouraged, with the judgment stating that ‘the certification process should be viewed in the light of access to justice’.

Michael Jacobs at Boies Schiller contends that the saga demonstrates the approach of the CAT to ensuring only meritorious claims are heard. ‘At the certification stage, you used to think the CAT would green light everything. In Gormsen v Meta, the tribunal said “hold on, the claim looks badly formulated”, and sent it away to reformulate. The CAT just greenlit bringing the reformulated claim forward. There are checks and balances in place to ensure claims aren’t entirely ill-conceived.’

For Liza Lovdahl Gormsen: Greg Adey (One Essex Court), Robert O’Donoghue KC and Sarah O’Keeffe (Brick Court Chambers) and Tom Coates (Blackstone Chambers) instructed by Quinn Emanuel Urquhart & Sullivan

For Meta: Tony Singla KC, Marie Demetriou KC and David Bailey (Brick Court Chambers), Andrew Lomas (One Essex Court), and James White (Henderson Chambers) instructed by Kim Dietzel and Stephen Wisking (Herbert Smith Freehills)

Return to Disputes Yearbook 2024 contents.